The dissent tracked the evolution of the existing label information for this drug, found that the FDA had ordered Wyeth to include a specific warning related to the administration of this medication via an IV push, that the label made clear that IV push is the delivery method of last resort, and that the IV push has certain benefits under certain circumstances.

Levine's argument is that the FDCA contains no express preemption provision and that there was no evidence that the FDA considered the risks and benefits of the IV push method of administering Phenergan.

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